Rosensteil v. LisdasRosensteil v. Lisdas
Lead Opinion
This is аn action to recover damages for personal injuries suffered by plaintiff as a result of his efforts to break up an affray which occurred in defendants’ restaurant. The trial court directed a verdict for defendants. Plaintiff appeals.
At about 3:00 a.m. on August 13, 1966 the plaintiff and a companion stopped to eat at defendants’ all-night restaurant in the small town of Cornelius. The defendаnts’ restaurant was adjacent to a bar which was also operated by defendants. The bar had closed at 2:30. The restaurant was crowded with people some of whom had come from defendants’ bar and other bars in the town.
• Soon after plaintiff entered the restaurant a man came running into the restaurant pursued by two others later identified as David and Jeff Hale. Plaintiff describеd the scene as follows:
“A. We were sitting there eating ham and eggs and all of a sudden the door burst open and this fellow came in screaming. It wasn’t screaming— it was an actual screech and he was pretty well beat up. His eyes, were closed and this other-, fellow immediately came in the door right after him and he more or less tackled him, and he wrapped himself around him and they both fеll to thefloor, and the fellow that tackled the other fellow put his arms and legs around him and held him, and the other fellow was in there by then and started kicking him in the head.
“I didn’t believe it at first. I sat there watching him kicking him in the head. The whole place was silent except for the thump, thump, thump. The fellow on the floor finally quit screaming. I guess he was knocked out. He lay still and the fellow standing up still kept kicking him. I just couldn’t see it, so I jumped up and grabbed thé fellow from behind that was doing the kicking and held his arms. And a few seconds after that several people, I guess they were customers drug the other fellow off of the floor that was holding the other one, and the fellow I was holding, he started saying, ‘don’t hit me. Don’t hit me. I don’t want to go to jail. Please don’t hit me.’ So, I figured I had already become involved enough so I let him gо and in the meantime the other fellow had been ejected out the front door and when I did let him go, he went out what I took to be the back door. * # * * * That fellow was still unconscious and people were milling around and I went over and his hand was stepped on by people milling around. I started to stoop over and help the man and' I was stabbed in the back. * * * I guess they came in the baсk door, * * ’ * * * it was' the fellow that walked out the back door and the fellow that had been forced out the front. The two that jumped this other fellow. * * * * * [Q]ne grabbed me and started kicking and fighting in desperation more than anything. * * * He had a knife. * * * * * Someone grabbed me around the neck and things really went wild then and we ended up back through the kitchen door and it turned out to be his brother that was — he , was holding me аnd the other fellow tried to stab me in the stomach and I bent way over and put my arms out and he stabbed me in the left arm. And then I went back through the kitchen and towards the counter there and he stabbed me in the other arm. The whole place was just really wild then and I guess I ran toward the front door and got out to my pick-up which was parked right in front of the front door #
Plaintiff contends that defendants owеd him a duty to have employed precautions so that any disorderly person entering the restaurant would be subject to reasonable restraint. The complaint alleges that defendants were negligent in allowing on the restaurant premises David and Jeff Hale, persons known to defendants as having violent and disorderly propensities, in allowing disorderly conduct on the premises and in failing to provide employees to maintain order.
The only personnel working in the restaurant at the time of the foray were a cook, a dishwasher and a waitress, all women.
There was evidence of previous disturbances in the restaurant. The city policeman testified that there had been a previous violent altercation with the Hale brothers in the same restaurant аbout a year before. A deputy sheriff testified that he was called to the restaurant “numerous times for different drunks, fights.” The waitress testified that during the thirteen days she had worked immediately previous to the night in question, there had been “a few ‘hassles’.” The waitress testified that the Hale brothers, the first victim, two other men and a woman had been customers in the cafe and had left “ten to fifteen minutes” before their eventful return.
There was no telephone on the restaurant premises by which the police could be called. There was a pay phone in a booth across the street, and the police could be signalled for help .by flipping an electric switch which turned the light off in the cafe’s street sign. There was no evidence that anyone switched off the light on the night in question. The cook testified that after the first altercation she took a dime and started for the back door en route to
Plaintiff contends that this evidence was sufficient to entitle him to have the case submitted to the jury.
The owner of a restaurant, amusement place, tavern, or inn owes his business guests a duty of ordinary reasonable care to protect them from injury at the hands of other patrons while on the premises. Peck v. Gerber,
We hold that the evidenсe in this case is not sufficient to permit the jury to find that defendants negligently caused plaintiff’s injury. It would be unreasonable for the jury to find that defendants could have anticipated and should have been prepared for the contingency that two men crazed with drink, wildly chasing their quarry, would burst into the restaurant, criminally assault their victim and thus draw into the fray a sympathetic bystander in the restaurant. There is nо evidence that anything previously occurring in the restaurant would have given defendants reason to believe that such a wild affray would erupt from the street.
Even if a restaurant owner has the duty under some circumstances to employ personnel who are capable of keeping order and thus protect his patrons from injury resulting from the foreseeable conduct of his рatrons, he is not required to employ such personnel for the contingency that outsiders will elect to use the restaurant rather than the street as their battleground. The fact that the Hale brothers had previously been in the restaurant gave defendants’ employees no warning that they would stir up trouble and suddenly return to burst into the restaurant. It is the responsibility of the public police to quell such disturbances whether they occur on the street or in a restaurant. And even where previously violence has swept in from the streets, we do not think that it should be the duty of a businessman operating a restaurant to risk his own life or employ others to risk theirs in order to protect bystanders who happen to be in the restaurant rather than on the street. That is a function which he should be ablе to leave to government police.
The cases cited in the dissenting opinion are not apposite. In those cases the owner of the premises was in a position to prevent harm to his patrons by quelling a disturbance which was in its incipient stage in his presence.
The judgment is affirmed.
Notes
See, e.g., Moone v. Smith, 6 Ga App 649,
Dissenting Opinion
(Pro Tempore), dissenting.
It should he noted that the evidence, in addition to that recited in the majority opinion, showed that the defendants seldom visited the operation of their restaurant during the night, hut that written notification was given to them by employees about altercations occurring in the restaurant at night.
There was evidence from which a jury reasonably could draw the inference that the Hale brothers frequently were violent and dangerous. Thе city police officer testified that on the occasion of the Hale brothers’ previous fight in this same restaurant they assaulted him from front and rear, trying to
On defendants’ motion to take the case from the fact finder, the evidence is to be viewed in the light most favorable to the plaintiff. Warren et ux v. Parsons et ux,
Viewed in this light, I believe the plaintiff’s case should have been submitted to the jury, with proper instructions.
Plaintiff’s specifications of negligence included allegations that defendants allowed David and Jeff Hale, persons known to the defendant to have violent and disorderly propensities, on the premises; that they allowed disorderly conduct and the assault described, and that they failed to provide employees to maintain order.
A duty which a restaurant, amusement place, tavern, or inn operator owes his business guests is that of ordinary reasonable care to protect them from injury at the hands of third persons while they are guests. Peck v. Gerber,
These authorities hold that evidence supporting allegations of negligence similar to those alleged here suffice for recovery of damages by the plaintiff. Some such cases refer to the duty only in a situation where one customer injures another, but others specifically include a customer or any other third person injuring a customer. Edwards v. Great American Insurance Co.; Moone v. Smith; Molloy v. Coletti; Shank v. Riker Restaurants Associates, Inc.; Connolly v. The Nicollet Hotel, supra. See also Comment in 70 ALR2d at page 645.
The Annotation in
In the instant case, the
The Annotation in 70 ALB2d at page 657 comments :
“* * * [T]he courts attach considerable weight to the fact that [the] proprietor of the establishment where the injury occurred had some notice of the possibility of harm from prior actions of the person causing the injury, either on the occasion of the injury, or on previous occasions.”
In Coca v. Arceo,
“* * * The rule does not require a long and continued course of conduct tо find that the proprietor had knowledge of the violent disposition of the other patron — all that is necessary is that there be a sequence of conduct sufficiently long to enable the proprietor to act for the patron’s saféty. It is not necessary that the proprietor know of a history of a series of offenses against the peace * *71 NM at 190 .
Nevin v. Carlasco,
“(1) [When he] * * * allowed a person on the premises who has a known propensity for fighting.
“(5) [He] * * .* failed to provide a staff adequate to police the premises.
“(6) [He] * * * tolerated disorderly conditions.” .
Essentially the same tests are set up by the Washington Supreme Court in Miller v. Staton, supra, where cases, including Peck v. Gerber, supra, are cited in support of each test. To the same effect see syllabi 2, 4, 5 and 6 in Connolly v. The Nicollet Hotel, 254 Minn at 373, 374, supra, in support of each test.
Based upon the facts and the foregoing authorities, I believe that granting the motion for directed verdict in the case at bar was error unless plaintiff’s voluntary injection of himself into the beating of the victim by the Hale brothers was a superseding cаuse, or unless the fact that the brothers and their victim had left the restaurant where they had been customers some 10 to 15 minutes before and then returned broke the chain of causation. On the basis of precedents cited above, I think it is immaterial whether the Hales were, at the time of the assault, customers or non-customers if the jury were to find that defendants allowed them to frequent the рremises and knew they had violent propensities. In Shank v. Riker Restaurants Associates, Inc., supra, an assailant had come into a restaurant and was abusive toAvard customers. The court held that it did not break the chain of causation as to the proprietor’s negligence in not calling the police simply because the assailant went out of the restaurant a few seconds before he came back in and assaulted the plaintiff. The court held that if the sequence of events makes them into one related incident it is sufficient to create a fact question as to causation. Applying this reasoning to the facts in the case at bar with
“* * * When reasonable persons can differ upon the point, the question of ‘substantial’ or ‘proximate’ cause is for the jury * *
Will the fact that plaintiff volunteered, that is, tried to rescue the victim from the beating, prevent him from recovery if he was otherwise entitled to recover? The answer is found in the logic of Mr. Justice Cardozo in Wagner v. International Ry. Co.,
“Danger invites rescue. The сry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. * * * [Citing many cases] The risk of rescue, if only it be not wanton, is born of the ocсasion. The emergency begets the man * *232 NY at 180 .
See Annotation following this case in
Defendants in their brief press upon the court the decision in Boss v. Prince’s Drive-Ins,
In Rawson v. Massachusetts Operating Co., Inc., 328 Mass 558,
“* * * [T]hat the defendant should have known that if it did not take such action [to control disorder in the theatre], it was to be reasonably anticipated that patrons might undertake to supply the omission; and that if that happened, the authors of the rowdyism might rеsent such unofficial interference with their misbehavior, and might even commit a cowardly assault in the dark upon a remonstrating patron * * 328 Mass at 560.
Where there is evidence as strong as that produced in this case, evidence which, when tested by the rule favoring the plaintiff on a motion for directed verdict, could leave reasonable minds in doubt, it is almost uniformly held that the questions of negligence and causation are for the jury. Hill v. Merrick,
“When an issue of proximate cause arises in a borderline case, as not infrequently happens, we leave it to the jury with appropriate instructions. We do this because it is deemed wise toobtain the judgment of the jury, reflecting as it does the earthy viewpoint of the common man — the prevalent sense of the community — as to whethеr the causal relation between the negligent act and the plaintiff’s harm, which in fact was a consequence of the tortious act is sufficiently close, to make it just and expedient to hold the defendant answerable in damages. That is what the courts have in mind when. they say the question of proximate .causation is one of fact'for the jury. [Citing cases] is similar to the issue of negligencе, which is to the jury as an issue of fact. Even where on the evidence, the facts are undisputed, if fair-minded men might honestly and reasonably draw contrary inferences as to whether the ■ facts do or do not establish- negligence, the court leaves such issue to the determination of the jury * * ',222 F2d at 611.
. It is my opinion that the evidence and the .law applicable are such that the case should have been submitted to the jury with proper instructions. ■ Therefore, I would reverse the order of the trial court and remand the case for a new trial.